was clumfy and heavy, confequently lefs worth ftealing, or if ftolen could. not be carried off; and as for linen, which is the most eafily difpofed of by the pilferer, it is believed that none was worn at this time; and the mountaineers in Wales (who may be fuppofed to live at prefent as the Englifh did centuries ago) ftill ufe nothing but flannel.

Trade, however, by this year of the reign of Henry the Eighth, had confiderably increased, and with trade, its natural concomitants, luxury and elegance-The houfe had now fomething to tempt the pilferer; and if it was, by its fituation, lonely, and at a distance from other habitations, gangs of thieves befet and rifled it [c], which feems to have been the occafion of the ftatutes requiring, that the owner or his family fhould be put. in fear.

The next ftatute, which takes away the benefit of clergy from larceny, is the 5th and 6th of Edward VI. ch. ix. which extends the ftatute of Henry VIII. to a robbery in a houfe, where the owner, or any of his family, happen to be, although they are not put in fear; which was, in ail probability, occafioned by a houfe having been rifled, whilft the owner and his family were afleep, and confequently not put in fear; which is a neceffary circumftance by the ftatute of Henry the Eighth-The legiflature, by the fame aft (having thus explained the 23d of Henry VIII.) take away likewife the benefit of clergy from a robbery in a booth, or tent in a fair-This protection to the property of a perfon, who kept a fhop or booth in a fair, arofe from fairs being much more confiderable than they are at prefent, and poffibly not unlike the great fairs of Germany, in which very confiderable mercantile tranfations are carried on; whereas with us, the well-fupplied fhops in every town and village almoft (as well as licensed hawkers) do not make it neceffary for the inhabitants. of the country to wait for a particular anniversary, which was to fupply the wants of the whole year.

The next statute, which relates to robberies in dwelling-houses [d], is:

[c] The firft ftatute againft Egyptians paffed the year before, which recites them to go from place to place in great companies-It appears by Holinfhed's Chronicle, that they had invented a language peculiar to themfelves, called Pedlars French, and that they were fubdivided into fifty-two different claffes of thieves; the names of which he enumerates, vol. i. p. 183. This very peculiar race of people are banished from almost every part of Europe-They are in French called Bohemiens-Their complections feem to prove, however, that they come origi nally from Egypt, or fome fouthern latitude-Cervantes fays of them, "los Gitanos parece

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que folamente nacireon en el mundo, para fer ladrones."

[d] It was allowed by the twelve tables to kill a Burglar-QVEI. NOX. FCRTOM. FAX

SIT, SEI. IM. ALIQVIPS. OCCISIT. IOVRE. CAESOS. ESTOD. SEI. LOVCI. FOR

the

the 39th of Eliz. ch. xv. which recites, that the poorer fort of people were obliged to leave their houses during divine fervice, without any one in them; as likewife when they were employed in country labours, or bufinefs it therefore enacts, that if any person shall steal goods from any dwelling house (though no one is within) which exceed the value of fiue fhillings, he fhall be excluded from the benefit of clergy.

By this time tenants had procured from their landlords leafes for terms of years; and having a more permanent intereft in their farms, they could afford to improve them, and reaped the honeft fruits of their industryAs their rents were now paid in money, they muft at times have had confiderable fums in their houfes, and perhaps a filver fpooon, or linen, to tempt the thief, who watched the opportunity of every one being abfent; and by that means not only plundered the house with ease, but evaded the two former ftatutes; both of which required the owner, or fome of his family, to be in the house, at the time the robbery was committed.

The legislature having thus protected the property of the farmer, in the third year of W. and M. [e] (when trade had infinitely increased) fhew the fame protection to the property of another most useful clafs of men to society, viz. the merchants, and enacts, that "if any one shall steal goods "from any shop, or warehouse adjoining to a dwelling-house, to the value of five fhillings, he fhall not be entitled to his clergy, although no perfon pall happen to be within"-And the 10th and 11th of William III. (commonly called the shop-lifting aft) takes away clergy from him, who fhall privately fteal goods to the value of five fhillings, from any shop, or warehouse, coach-house, or stable---This last statute, befides including coachboufes and tables, does not make it neceffary, that the fhop or warehouse

This

It feems

TOM. FAXIT. TELOQ, SE. PRAEHENDIER. PROHIBESIT. SEI. IM. ALIQVIPS. OCCISIT. IOVRE. CAESOS. ESTOD. AST. SEI. LOVCI. FORTOM. FAXSIT. NEQVE. TELO. SE. PRAEHENDIER. PROHIBESIT. SEI. LEBER. SIET. PRAETOR. IM. VERBERARIER. IOVBETOD. EIQUE. QUOI. FORTOM. FAXSIT. ADDECITO. SEI. SERVOS. SIET. VIRGEIS. CAESOS. EX. SAXO. DEICITOR. SEI. IMPOBES. SIET. PRAETORIS. ARBITRATVV. VERBERATOS. NOXSIAM. SARCITO. law is remarkable not only for the matter, but for the language, and spelling of itfrom this fpelling, that the Romans generally pronounced their u as the Grecians did their e, and as the French now pronounce thofe vowels when joined together-At least this obfervation holds true in thofe fyllables of words, which are not final as in joure, inflead of jure; and the Roman name of Lucullus is in Greek Auxo^^os-In the ends of words, o is ufed inftead of the more modern fpelling with u, as in cafos, inftead of cafus, which again agrees with the Greek termination of Aunonhos, instead of Auxous-It may be further obferved, that the Romans pronounced the letter i like an e, and as moft of the nations in Europe pronounce it, as leber is used inflead of liber. [e] Ch. ix.

fball

Shall be adjoining to the dwelling-boufe, which is required by the 3d of Wilham and Mary-And I the rather take notice of this diftinétion between the two laws, as Mr. Juftice Fofter hath reported [f] a decifion at the Old Bailey in July 1751, that this statute does not extend to any warehouse, which is a mere repofitory for goods, but only where merchants and traders deal with, and fell to, their customers-It fhould feem, however, that thefe diftant warehouses were thofe exprefly, which were intended to be protected by this ftatute, as the fhop or warehouse ajoining to a dwelling-boufe was before protected by the 3d of Will. III. ch. ix. And the more diftant the warehoufe, the more probable it is that it fhould be broken open.

Lastly, the 12th of Ann. ch. i. takes the benefit of clergy from him, who fhall fteal goods to the value of forty fhillings from any outhoufe.

I have endeavoured, by this state of the different ftatutes, which relate to the robbing of the dwelling-houfe [g], or building in fome measure connected with it [b], to fhew the one naturally to follow and arife out of the other, from the alterations of circumstances from time to time, and chiefly from increase of trade; as alfo to juftify the ftatutes from being confidered as too fevere-What hath besides contributed perhaps to the opinion, which many have formed, that our laws, with relation to the punishment of this offence, are too bloody, is, perhaps, the comparison of the English statutes with thofe of other countries; but till a country can be found, which contains equal property and riches, the comparison cannot be a just one [i]-I allow that, by the laws of moft countries, this offence is not a capital one [k]; and Plato obferves, from a paffage in the Odyfey, that, in the time of Homer, it was not confidered as a blemish, but rather honour to a man's character.

With regard to the Spartans, it is well known, that Lycurgus is faid to have promoted it by his laws-If this really was one of his inftructions, it

[f] P. 78..

[g] As for other larcenies, it is well known, that they are seldom punished with death.

[b] A ftatute of the late king hath indeed gone much further, by making it felony to fteal black lead from the mine.

[i] I have not an opportunity of being informed accurately what kind of thefts are punished capitally in Holland.

[k] Inftances, however, are not wanting of it's being fo-Thus Hector Boëthius informs us, that, by the laws of Kenneth, thieves were to be punished with death-And by the laws of Athelftan, a freeman was to be thrown from a cliff, and a flave to be ftoned-It should seem likewise, that theft was punished by death by the old Welfh laws, as a particular cliff is fhewn in Merionethshire, between Dolgelly and Tal-lyn, from whence the criminal (agreeable to the laws of Athelstan) used to be precipitated: there is likewise a traditional ftory, that a criminal defiring the sheriff to shake hands with him before he died, involved him likewife in his fate, and punishment..

PP

ferves

ferves only to prove the general rule, as he was in all inftances a most paradoxical legiflator-I fhould, however, fuppofe that we have a very imperfect and inaccurate account of all the Spartan cuftoms and manners, as their inftitutions were of a moft forbidding nature to a ftranger, who would not therefore live with them; and the Spartans themfelves were, by their laws and education, obliged to be illiterate-We therefore cannot be informed by a Spartan writer-I should therefore fuppofe that this encouragement of theft hath been misunderstood, from an encouragement given by their legiflator, to make incurfions and depredations [1] upon the neighbouring ftates, which tended to keep up their perpetual wars, and martial difpofition: as for a theft at home between Spartan and Spartan, Lycurgus had taken care that there fhould be nothing to steal.

The Romans punished this offence in their flaves often with deathThe fenatorial order, however, were even exempted from any profecution for this crime, according to Dio Caffius

Ὑπὸ δὲ τὰς αὐτὰς ἡμέρας δόγμα ἐγένετο, μηδένα τῶν ἐς τὴν γερεσίαν τελέντων ἐπὶ λησείᾳ κρίνεσθαι καὶ ἔτως οἵ τε τότε ἐν τοιαύτη τινὶ αἰτίᾳ ὄντες αφείθησαν. Dio Caff. 1. xlix. p. 477, edit. Hen. Steph. [m].

None of these inftances however prove, that thefts, attended with aggravating circumstances, might not have been punished with fevere or capital punishments; though (as with us) what goes by the general name of larceny, might have been treated with greater indulgence to human temptation and infirmities, or even perhaps fomewhat encouraged by a whimfical and paradoxical legiflator.

[1] I have before observed, on the 4th of Hen. IV. that the civilized Athenians were required, by one of their laws, to make depredations twice a year upon the people of Megara.

[m] I have before observed, p. 231, that Lord Clarendon fays, that the house of lords, in the time f Charles the Second, infifted upon their privileges being faved in a bill to punish wood-fealers.

STATUTES

STATUTES MADE AT WESTMINSTER.

T

HE 4th chapter of this ftatute regulates the trial of piracy, or other capital offences committed on the high feas, which the preamble recites to have frequently been committed with impunity, because the trial before the admiral, or his commiffary, was according to the rules. of the civil law, which requires either confeffion of the criminal, or proof by indifferent witneffes-The ftatute after this recital directs, that fuch offences fhall for the future be tried by the king's commiffion, in any county, in like form and condition as if the crime had been committed on fhore.

I fhould conceive that this ftatute was drawn by the then judge of the admiralty, as it contains a moft ftrong and undeferved reflection on the common law, by the reciting" that indifferent witnesses were not required at "the trial by common law, as they are by the civil law"-It is true, that more exceptions to the teftimony of witneffes are allowed by the civil law, than by the law of England[a]; but they are only exceptions of unneceffary fub

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[a] By the old French law, the objections to the competency of witneffes are still more numerous than by the Roman law --Thus Beaumanoir in his Coutumes de Beauvoifis, "Batars et ferfs "doivent etre deboute de leur tefmoignage, fe le querele n'eft contre ferf ou contre batar-Mefiau ne doit pas etre oi en tefmoignage, car coutume s'accorde que ils foient deboute de la conversation "des autres gens — Chau qui font a men pain, et a men pot, ou en me mainburnie, ne doivent pas "etre vi en tefimoignage pour moi"- As both the language and orthography of the above citation, are very antient, I fhall translate fome of the more unufual terms - Mefiau fignifies a leper; it is fometimes in this author written mefiè & mezlè, which agrees with our fense of the word meafly, when applied to fwines flesh-Such a difference in the spelling of a word will not furprife any one, who hath happened to read many antient authors, in any of the modern languages-Chaux qui font a men pain, et a men pot, ou en mainburnie, fignifies those who eat my bread, or partake of my pot, or are under my guardianship, or government. This treatise of Beaumanair is fo fyftematical and compleat, and throws fo much light upon our antient common law, that it cannot be too much recommended to the perufal of the English antiquary, historian, or lawyer-He was baily (or fteward who kept the courts) of the Comte de Clermont, and gives an account of the customary laws of Beauvoifis (which is a district of county about forty miles to the northward of Paris) as they prevailed in the year 1283-He is confequently a more antient writer than Littleton, and, to speak with all due deference to this father of our law, a better writer— It need hardly be faid, that the cuftoms and laws of the two countries were at this time very fimilar, especially of the more northern parts of France; and if it wanted other proof, the commentators upon the oldest French law books cite Littleton as illuftrating their cuftoms-Beau-· manoir's work was first printed at Bourges in 1690, with a fhort commentary by Gafpard Thaumas Pp 2 tlety